Young v. Toronto District School Board, 2010 HRTO 356

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Young

Applicant

-and-

Toronto District School Board

Respondent

-and-

Elementary Teachers’ Federation of Ontario – Toronto

Occasional Teacher Local

Intervenor

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: February 17, 2010

Citation: 2010 HRTO 356

Indexed as: Young v. Toronto District School Board

1On January 12, 2010, the Tribunal issued a Decision dismissing this Application: 2010 HRTO 51. The applicant has filed a Request for Reconsideration.

2Section 45.7 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) provides the Tribunal with explicit authority to reconsider its decisions. Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration).

3Most relevant to this decision is Rule 26 which reads, in part, as follows:

26.5 A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

4The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

5As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

6In the Request, the applicant has indicated as his reason for requesting reconsideration that factors exist that outweigh the public interest in the finality of Tribunal decisions.

7The applicant asserts that I was biased in my Decision to dismiss the claim. In support of this assertion, he makes reference to certain statements made by counsel for the Toronto District School Board (the Board) or the intervenor (the ETFO) which were not referred to in the Decision. The applicant also asserts that I refused to accept the information he provided as being new or different from what was before the Ontario Labour Relations Board (the OLRB) in 2004, when it dismissed his application under the Labour Relations Act, 1995.

8The applicant also states that I was unconcerned about an agreement that was reached between the Board and the ETFO.

9There is no doubt the applicant disagrees vigorously with my Decision in this matter. However, the applicant has not established a basis for reconsideration of the Decision. His submissions in part re-state arguments that were made at the hearing, and which I did not accept. It is unnecessary for me to repeat my determinations; it is sufficient to state that the applicant’s submissions do not cast doubt on the correctness of those determinations.

10Further, the applicant’s assertions of bias are unsupported. It is unnecessary for the Tribunal to refer to every submission made at a hearing. If I found it unnecessary to refer to an agreement between the Board and the ETFO, or inquire about the exact date it was entered into, it was because it was not germane to my conclusions. There was no dispute that the system for assigning work to occasional teachers had been agreed to between the Board and ETFO, and that this very system and the ETFO’s acceptance of it were issues before the OLRB in the 2004 proceeding.

11The applicant objects to the fact that the Decision failed to mention that counsel for the Board “admitted to the perception of filling daily teaching jobs as being discriminatory with a small ‘d’”. Counsel did indeed state that the system may well be discriminatory in the sense that each of the schools is discriminating on a daily basis based on who it wants to use as a supply teacher. However, counsel clearly differentiated between “discrimination” in the sense of preferring some teachers over others, and “discrimination” on the basis of a Code-protected ground such as age.

12In the result, the applicant has not established the existence of any of the criteria supporting reconsideration of the Decision. Neither has he provided any basis for the additional assertions that I was unprepared, or failed to perform my duties with honesty and integrity.

13The Request for Reconsideration is denied.